Welch v. Winn-Dixie Louisiana, Inc.

• Decision Date: 22 May 1995
• Parties: 94 2331 La
• Court: Louisiana Supreme Court

Page 309

655 So.2d 309

94 2331 La. 5/22/95

Maxine WELCH and James M. Welch, Individually and on Behalf of Their Minor Children, Wendy Welch and Sabrina Welch v. WINN-DIXIE LOUISIANA, INC. and XYZ Insurance Company.

No. 94-C-2331.

Supreme Court of Louisiana.

May 22, 1995.

Michael J. Samanie, Herbert W. Barnes, Jr., Samanie, Barnes & Allen, Houma, for applicant.

Dixie C. Brown, Carlos E. Lazarus, Houma, for respondent.

[94 2331 La. 1] CALOGERO, Chief Justice. ^*

We granted plaintiff's writ application because this Court has not yet had occasion to address La.R.S. 9:2800.6 as revised in 1990 and its effect on a plaintiff's burden of proof in a slip and fall case. The jury awarded plaintiff damages for injuries sustained when she slipped and fell, allegedly in cooking oil, in a grocery store. The Court of Appeal reversed, finding that the jury's conclusion was clearly wrong, for plaintiff did not meet her burden of showing that the defendant had constructive or actual notice of the dangerous condition as required by revised La.R.S. 9:2800.6. Finding support in the record for the jury's verdict which implicitly found the existence of constructive notice, and determining there was no manifest error in that regard, we reverse the Court of Appeal and reinstate the judgment of the trial court. The revised version of La.R.S. 9:2800.6 does indeed increase the plaintiff's burden of proof (requiring the plaintiff to show that [94 2331 La. 2] the merchant created or had actual or constructive notice of the condition which caused the damage), but it does not bar recovery of this plaintiff in this case.

Plaintiff Maxine Welch, 36 years old, and her thirteen year old daughter Wendy were grocery shopping at Winn-Dixie on the evening of Tuesday, June 25, 1991. Welch had worked that day, and after eating supper, she and Wendy arrived at Winn-Dixie about 5:40 p.m. Welch pushed her grocery buggy into aisle three in search of cake mix. Welch and her daughter walked past the cooking oil section to where the cake mix was located. Welch did not notice anything on the ground in the aisle. While looking at the cake mix, Welch realized she needed cooking oil. She left the grocery buggy with Wendy and walked back down the aisle to the cooking oil. When she arrived in front of the cooking oil, she slipped and fell on a liquid substance on the floor. At the time, Welch was wearing pants, a shirt and tennis shoes. She tried to get up, but it was too slippery. She called for her daughter and sent her for help. Wendy went to the back of the store and returned with Cranston Ross, the Assistant Manager, and Virgie Pellegrin, a Winn-Dixie seafood clerk. Pellegrin and Ross assisted Welch into a chair. According to Welch, Ross told her at that time that he could not see anything on the floor. Although Welch knew she had a liquid substance on her, she could not tell what it was because it blended in with the shine on the floor. Ross then wiped the floor with a paper towel and told Welch that it was cooking oil. He gave Welch some paper towels to wipe the oil off of her body and her clothing. Ross then completed an Accident Report and told Welch to see a doctor if necessary.

That evening Welch went to the emergency room, received pain injections and was advised to see an orthopedic doctor the next day. Over the next several months, she was treated by several physicians and eventually had back surgery. At the time of trial, approximately fourteen months after the accident, Welch had increased her activities to where she could walk one and one-half miles a day and do light-duty housework. She was still in pain and [94 2331 La. 3] regularly took pain medication and a muscle relaxant. She testified that she had a problem standing for long periods of time. Welch testified that prior to the accident, she had worked at several minimum wage jobs, but at the time of trial, she was still unable to return to these or any other types of employment.

Welch and her husband, individually and on behalf of their minor children, filed a lawsuit against Winn-Dixie Louisiana, Inc., alleging in the petition that the sole and proximate cause of Welch's accident was the fault, negligence and strict liability of Winn-Dixie attributed to the following:

a) Failure to properly inspect and maintain the premises in a safe condition;

b) Failure to warn petitioner of unsafe conditions of the premises;

c) Failure to properly and routinely inspect the premises for unreasonable hazards such as that which caused the subject accident;

d) Failure to keep the premises free of foreign substances which would have eliminated the cause of the subject accident; and,

e) Any and all other acts of fault, negligence and strict liability which may be proven at trial of this matter. Petition, p 5

Claims for loss of consortium were also included for husband James Welch and children Wendy Welch and Sabrina Welch. ¹ Winn-Dixie answered with a general denial and asserted the affirmative defense of plaintiff Maxine Welch's negligence.

The matter was tried on August 10 and 11, 1992 before a jury. During the case-in-chief, plaintiffs presented seven witnesses, including the following: Mr. Cranston Ross, Winn-Dixie Assistant Manager; Ms. Virgie Pellegrin, Winn-Dixie seafood clerk at the time of Ms. Welch's accident; Mr. Ronald Lee Quave, former Winn-Dixie Assistant Manager who had left Winn-Dixie's employ in May, 1991, one month before Welch's fall in the store; Dr. Dexter A. Gary, one of Welch's treating orthopedists; Mr. Nathaniel E. Fentrist, a rehabilitation counselor; Ms. Maxine Welch, plaintiff; and Dr. Roy D. Womack, an economist. Defendant Winn-Dixie called only two [94 2331 La. 4] witnesses, Dr. Jonathan S. Wood, an economist; and Dr. Thomas Meunier, a vocational rehabilitation counselor who testified through his video deposition.

Cranston Ross testified that he had been employed with Winn-Dixie for nineteen years and was the Assistant Manager of the store in which Welch fell. He stated that he was the only Assistant Manager on duty at the time of the accident. He did not recall if any of the department managers were on duty at the time of the accident or how many cashiers, service clerks, or employees were on duty. He stated that the store is swept and mopped throughout the day as needed, and management personnel decide when sweeping is necessary by walking the store. Service clerks can make a decision themselves to sweep or mop if they see something on the floor. The store is completely mopped at closing time at night once the customers are gone. The floors are waxed by an outside contractor. At the time of the accident, replenishment of cooking oil stocks took place on Monday, Wednesday and Friday nights, and the shelf with the cooking oil should have been stocked the night before Welch's accident. Cooking oil is an item that moves quickly and from time to time must be restocked during the day. Ross testified that it was the responsibility of any management personnel or service clerk that might be in the area to inspect the cooking oil aisle, but no specific person was assigned the task of inspecting this particular aisle.

Ross testified that he inspected the store constantly throughout the day and it was his practice to inspect the store every ten to fifteen minutes while he was on duty. If he was detained, as much as thirty minutes might elapse without an inspection, but that was rare. This was Ross's own set procedure because Winn-Dixie provided no written directions as to how often inspections were to be done. Therefore, Ross did not know how often or at what intervals management personnel on other shifts would conduct inspections.

Ross testified that on the evening of the accident, he inspected the cooking oil aisle about five minutes before Welch's [94 2331 La. 5] accident because he was in the aisle at a customer's request checking a price on cake mix, which was located on the other end of the aisle. Ross said he walked to within five feet of the cooking oil area, and inspected the aisle visually during this price check, although he did not walk in front of the cooking oil. ² Ross was in aisle three to check a price for a customer who was waiting in front of the store, not specifically to inspect for hazards. Ross said he was about five feet from the area of the accident, yet he could not disagree with plaintiffs' counsel who estimated that from right in the middle of the cake mix to where the accident occurred was about fifteen feet. After he checked the price on the cake mix, Ross said he looked down the aisle, but did not see any oil on the floor of the aisle. Ross admitted that the aisle was shiny and was depicted accurately in a photograph introduced into evidence. He also admitted that cooking oil could blend in very easily with that particular floor.

Ross could not remember when he last inspected the cooking oil aisle prior to his cake mix price check the evening of the accident, but his usual practice is to walk the store every ten to fifteen minutes.

Ross testified that after he checked the cake mix, he told the customer waiting at the front of the store the correct price, then he went to the back of the store and was standing at the back aisle helping a customer near the meat case when he learned of Welch's accident. Ross saw Wendy Welch asking for help. He followed her to where her mother was lying on the floor, and he noticed splatters of cooking oil on the floor. Contrary to Welch's testimony, Ross said that Welch was not lying in the area where the oil was located on the shelf. After the accident, Ross completed an Accident Report.

During his testimony, in response to plaintiff counsel's demonstration during which he poured oil onto the floor in the [94 2331 La. 6] courtroom, Ross identified approximately how much oil was on the floor when he discovered Welch. The jury also observed a video tape of the aisles of Winn-Dixie and the floors.

Ross could...